(영문) 대구고등법원 2012.6.21.선고 2012노33 판결

Defendant shall be punished by imprisonment with prison labor for one year and by a fine of 30,000,000 won. If the Defendant does not pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

23,000,000 won shall be additionally collected from the defendant.

The defendant shall be ordered to pay an amount equivalent to the above fine and the additional collection charge.

Reasons

1. Summary of grounds for appeal;

A. Error of mistake

1) As to the acceptance of bribe on October 6, 2010 as judgment of the court below

The Defendant did not receive KRW 20 million from K. However, the Defendant knew that he received golf 1 set of money as gift, and later returned the said money to K immediately with the knowledge that there was KRW 10 million in the box. As such, there was no intention to commit the crime of acceptance of bribe against the part that received KRW 10 million in the above amount.

2) As to the acceptance of bribe to a police officer on November 2, 2010 or on December 12 of the same year in the holding of the court below

The Defendant did not receive KRW 20 million from K: Provided, That even though he was aware that he sent a product description, he received an envelope from his subordinate employee M, he returned the above money immediately after he knows that there was KRW 10 million in the envelope. As such, there was no intention to commit the crime of bribery to the portion of receiving the above KRW 10 million for the Defendant.

3) As to the acceptance of bribe on April 5, 201 of the judgment below

The defendant did not receive KRW 20 million from K: Provided, That it is only used by K to put the bags with KRW 200,000,000 into upper straws at the time.

B. Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts

1. Degree of proof of the crime

The degree of the formation of a conviction in a criminal trial ought to be such that there is no reasonable doubt, but to the extent that it is not required to exclude all possible doubts, and rejection by causing a suspicion that has probative value without reasonable grounds is beyond the bounds of the principle of free evaluation of evidence. The term “reasonable doubt” refers to a reasonable doubt as to the probability of a fact that is inconsistent with facts based on logical and empirical rules, not including any doubt, and is not merely a rational doubt or abstract possibility (see, e.g., Supreme Court Decision 2010Do12728, Jan. 27, 2011).

2) The relationship and surrounding facts with the Defendant and K

The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below. ① From September 1, 2008, the defendant came to know K, an executive director in charge of business operation of the corporation I (hereinafter referred to as "I"), a subordinate employee of the same department, at the beginning of 2010 while working as the Director General of the GO in the following city from the beginning of September 1, 2008, and at the same time K was given son as gift, and it was returned to K through S through the next day because it was paid 2 million won in cash in the race.

② On February 2, 2010, the Defendant met with K in a golf appliance sales store operated by U, a shooting village type, and U, upon introducing K to the Defendant, requested that K be well-known as a type of punishment.

③ On November 26, 2009 and November 26, 2011, for the order of the “AE Corporation ordered by the IE Corporation”, K transferred KRW 10 million to the above S. Around April 2010, S was under investigation by the Board of Audit and Inspection with respect to the receipt of the above money and valuables. In this regard, S committed suicide while being investigated by the Board of Audit and Inspection on the receipt of the money and valuables, and a large number of public officials, including

By October 2010, the investigation was also conducted.

④ From May 2010 to June of the same year, K made a telephone call to U, but knew that the Defendant was receiving medical treatment at AF Hospital, and sought meals with U.S. to find the Defendant. From July 2010 to July 201, K also requested that the Defendant deliver I’s streetlights in relation to the business of running in I’s divers and I’s diversary viewing to the extent of 2-3 times.

⑤ On July 20, 2010, the Defendant came to know of the fact that K had undergone an operation with liver cancer, and sought KK hospitalized at AF Hospital.

① As above, the Defendant and K had a friendly relationship with each other before the instant case.

7) Meanwhile, from around December 2010 to March 201, 201, K was investigated at the Sungnam Branch of the Suwon District Prosecutors’ Office for a bribe-related suspicion. From March 201 to May 20, 201, K was investigated as to the borrowed-name account, etc. revealed in relation to the transfer of a bribe offered to the said S by the Board of Audit and Inspection from March 201 to May 20, 201. At the time of the investigation by the Board of Audit and Inspection, four borrowed-name accounts in the name of AG managed by the Defendant, including H and AI, and four borrowed-name accounts in the name of AH and AI, etc. managed by the Defendant. In that process, K led to an additional confession of the fact that K transferred KRW 6 million to A, a public official of Grade V, affiliated with the Government Procurement Service on July 22, 2008.

(8) On July 26, 2011, the Board of Audit and Inspection requested an investigation to K and AJ in relation to the charge of offering of a bribe to the above S and AJ.

3) Determination as to the acceptance of bribe on October 6, 2010 as judgment of the court below

A) the relevant statements and evaluation thereof;

① On July 2010, K made a statement to the prosecution that the document bags containing KRW 20 million in cash from N, the managing director of N, which is the first general executive director, had the Defendant deliver the street lamps that were produced in the business related to the street lamps in Ysan-si. On October 6, 2010, K used the document bags containing KRW 20,000,000,000, to the Defendant.

K has consistently made the statements to the same effect as a whole in the original judgment and the trial court thereafter.

As acknowledged earlier, in light of the following: (a) the Defendant, who became aware of from the beginning of early 2010, was able to provide meals together with each other; (b) there was a kind of relationship with each other; (c) the Defendant’s private village-type U.S. stated that the Defendant was Doing and leading the Defendant to the Defendant; and (d) the Defendant stated that the Defendant was Doing and leading the Defendant to the Defendant; and (c) as the Defendant was Doing and leading to the U’s new position, the said statement made by K was credibility.

② At the time of NN’s statement that K, in the latter part of the year of 2010, has a memory to provide money exceeding KRW 10 million as it is necessary for K to engage in business activities for the delivery of street lights from the next half of the year of 2010. The N’s statement also is related to the source of money issued as a bribe, and supports the aforementioned statement made by K.

③ On August 16, 2011, the Defendant initially asked K to question whether he received money from K for the first time and place of receiving money, and asked the public prosecutor to return money received from K (Evidence No. 69 of the record) and asked him to call with his wife by telephone, and stated that the Defendant “as to the question of the continued public prosecutor, he has received the envelope accurately at the “H coffee shop,” and opened the envelope accurately at the bar to receive the envelope, and had the enveloped KRW 10 million in the enveloped, so, he sent him to K by telephone, and returned the record that he returned it to K at the H coffee shop on the next day (Evidence No. 70 of the record).

On August 29, 2011, the Defendant stated that he received KRW 10 million from KR, along with a request to the effect that he may deliver the street lampposts purchased or installed in the following viewing,” and that he returned it to KR at the Hec shop after approximately one week (Evidence No. 123 of the record). Meanwhile, on the other hand, the Defendant sent memory about the fact of return of KRW 10 million at the lower court around September 201 and around October 10, 201, the Defendant stated that he then sealed the above fact of return of KRW 10 million at the lower court and that he returned it to Kack Station by packaging it on the outer document bags through M& serving in the disaster safety department belonging to G at the Seocho-si and at the early October 2010.

In addition, the Defendant made a statement to the effect that the golf straws received from K are one gambling house at the time, and changed the statement that he received five golf straws in the first instance, which contained money bags in the golf straws of the upper part.

The defendant stated in the prosecutor's office that he was immediately returned money in the first place. The defendant thought that it is difficult to maintain the part of the statement that he was immediately returned, and again received golf strawing gift, which seems to have changed his statement that he had contained money bags and returned the next day, and that he did not use the expression " several times". In the telephone call with the investigator of the prosecutor's office, he stated that the defendant had judged that he was 50,000 won in front of the one, and that the defendant was given five golf strawing, it is difficult to say that he was given the defendant's testimony that he was issued 00 days in the first statement that he had a money bags of five strawings, and that he was issued 0 days in the first place, and that the defendant's statement that he was issued 00 days in advance of the defendant's suicide and that he had intentionally changed the amount of money to 0 days in light of the fact that he had received 00 days in advance the defendant's statement that he had never received 00 days in advance the defendant's statement.

④ However, on November 2010, K’s statement that it received KRW 20 million from the Defendant’s “H coffee shop.” However, in light of the Defendant’s statement at the Defendant’s request, which stated that, at the Defendant’s office, the document bags of the size of golf stuffs were sent from R to K in Seoul Yongsan Station, and that, at the Seoul Yongsan Station, there was a lack of credibility, K’s statement that it received money bags from the Defendant on November 201, 2010 from “H coffee” that it received money bags from the Defendant. However, in light of the above circumstances and the fact that K’s statement on the above part cannot be said to have received money from other persons on several occasions after the Defendant’s offering of money to other persons on several occasions, the Defendant cannot be deemed to have returned all other parts of the Defendant’s statement that it received money from the Defendant on several occasions, and the Defendant cannot be deemed to have received money from the Defendant on more than 16, 2000.

(5) The Defendant’s receipt of a bribe from K in the course of an investigation on receiving KRW 10,00,000 from his subordinate employee SOK was against the common sense and there was no authority to give and receive a bribe from K. However, even though the Defendant’s subordinate employee, who committed suicide for the above reason, the Defendant maintained a friendship with K several times. Since the Defendant was in charge of construction, such as the purchase and installation of street light poles, while serving as the Director General of G in the following City, he is expected to exercise influence over the overall affairs under the jurisdiction of G Director General (No. 123 pages of the evidence record). In light of this, the Defendant’s above change is not easily accepted.

④ From August 2010 to January 201, P provided three mobile phone numbers opened in the P’s name through T, an employee of the supplier company in the following city from the prosecution from around August 201 to January 201, and stated that there was a fact that there was a change in the number of the above mobile phone numbers on two occasions at the Defendant’s request (Evidence No. 62, 98). The Defendant, who is a public official in general administration, uses multiple mobile phone numbers and does not easily understand the behavior of changing the number from time to time. Even if the Defendant’s defenses by using the name mobile phone are accepted certain parts, it is difficult to obtain the Defendant’s behavior that the Defendant used the name mobile phone in K with K and let K communicate communicate by using another person’s mobile phone.

나) 위와 같은 사정들에 비추어 보면, 2,000만 원이 든 서류봉투를 피고인에게 교부하였다는 K의 진술은 그 일시나 위 돈봉투를 반환 받은 경위에 대한 부분에서 일부 허위로 의심되는 부분이 있기는 하나 K이 피고인에 대하여 청탁을 하고 피고인에게 2,000만 원이 든 봉투를 건넸다는 주된 부분은 일관되고 분명하여 믿을 만하고, 이 부분 진술에 대하여는 합리적인 의심이 있다고 보이지는 않는다. 반면 K으로부터. 1,000만 원이 들어 있는 골프공 박스를 건네받은 것이라는 피고인의 진술은 선뜻 믿기 어렵다.

C) Comprehensively taking account of the evidence duly admitted by the lower court and the first instance court, including K’s statement, the fact that the Defendant received a bag containing KRW 20 million in cash at the request of K on October 6, 2010. The lower court did not err by misapprehending the facts as alleged by the Defendant, thereby adversely affecting the conclusion of the judgment. Accordingly, the Defendant’s allegation in the grounds of appeal on this part of the grounds of appeal cannot be accepted.

4) Determination as to the acceptance of bribe to a police officer on November 2, 2010 or on December 12, 2010 of the judgment below

A) the relevant statements and evaluation thereof;

① On November 2010 through December 12 of the same year from the prosecution to the court of the court below, K consistently stated that the subordinate employees sent by the Defendant from the Gangnam-gu Seoul L Hospital have opened the bags containing KRW 20 million in his house, and on December 15, 2010, the Defendant was able to get off his house and met the Defendant from the following day house. On December 15, 2010, K returned the remainder of money calculated by subtracting KRW 20 million from KRW 20 million to the original court of the court of the court of the court below. In this case, the Defendant stated that he returned to himself the remainder of money calculated by subtracting KRW 20 million from KRW 20 million from the original court of the court of the court of the party trial, and that he did not accurately memory the part of the above sum of KRW 30 million from the original court of the court of the court of the court of the first instance.

The fact that the defendant has received the document bags by sending his subordinate staff to him is recognized.

③ The Defendant changed as follows. In other words, upon the request of Dasan U, the Defendant told the director in charge of the industrial complex division of Dasan-si to introduce I to the company belonging to Kasan-si to the company in charge of the industrial complex, and again contacted K with the product description, etc., and told K that if you had the product description, etc., it would be possible to have the director in charge of the industrial complex division or the staff of the company in charge of the industrial complex. However, K would have to send the product description first. Accordingly, the Defendant sent his subordinate staff to K for receipt of the product description, and 50,000 won, 10,000 won, in a package containing the product description that the subordinate staff received from K. On December 15, 2010, the Defendant returned the said article to K from the next restaurant of 10,000 won.

However, it is very rare to send the product description to the public official by sending the public official by sending the public official to the public official without directly delivering the product description to the executive director of the company that requested the delivery of the street light pole at the Ysan-si, on the grounds that there is urgent and difficult physical body, etc., of the company's demand for delivery of the street light pole at the Ysan-si, and it is very rare to send the public official to the defendant without using the product description, and there is no reason to give convenience to the public official by sending his subordinate staff to the L hospital located near the Seoul residential area at the Ysan-si to receive the product description. In addition, if the sending of the product is related to the business of the Ysan-si, it is sufficient for the subordinate staff to bring him to the defendant's viewing office, but it is also sufficient to bring him to the defendant's office, and there is no special reason to bring him to the house of the defendant.

From the standpoint of K, it is difficult to easily understand that it delivers money to a third party, instead of delivering money directly to the defendant, and it is difficult to deliver money to deliver only a product description without contact with the defendant.

④ Even according to the Defendant’s assertion, when S, a subordinate employee, committed suicide while being investigated by K and the Defendant himself/herself was investigated by the prosecution, it is difficult to understand the Defendant’s behavior, which maintained contact with K by introducing I to the chief of the industrial complex division, and having K contact with K by making contact with the chief of the division in charge of the division in charge of the industrial complex or employees on the ground that he/she can only have a product description, etc. and received a product description through his/her subordinate employees, is not a mere stunfly and readily. However, it is difficult to understand the Defendant’s behavior, which maintained contact with K by using the vehicle name portable phone provided by the employees of the company and changing the serial number from time to time.

⑤ On August 16, 2010, the Defendant stated that K returned money at the same place at 10 million won from Doksan’s office (Evidence Records No. 71), on August 17, 2011, the Prosecutor stated that K returned one million won from Doksan’s office to Doksan’s office (Evidence Records No. 361), and that on August 29, 201, K received the product description from the Prosecutor’s office with the knowledge that K sent the product description, and that it returned money received from Doksan’s office after being about one week from Doksan’s office (Evidence Records No. 71), and that on August 29, 201, K returned money from Dok’s office (Evidence Records No. 361), and on the same day, it is difficult to see the Defendant’s office of 100,000 won near Dok’s office.

④ In the court of first instance, K partly made a statement different from the statement in the prosecutor’s office or the court of original instance, but it seems that K was unable to accurately memory in the fact that it was a statement after a considerable period of time from the date of the instant crime, and that it was a statement after K’s legal statement in the court of first instance.

B) In full view of these circumstances, the Defendant’s statement that included 10 million won in the bags brought by M at the time is difficult to believe, and the Defendant’s statement was issued to the Defendant through the Defendant’s subordinate staff on the end of November, 2010 or on December of the same year through the Defendant’s subordinate staff on the first time. The Defendant’s statement was credibility in the Defendant’s statement, and the pertinent statement was partially changed to the date and place of time, but such circumstance is not sufficient to the extent that the overall statement was not credibility.

C) Comprehensively taking account of the evidence duly admitted and examined by the lower court and the first instance court, including K’s statement, the Defendant is fully aware of the fact that the Defendant received the envelope containing KRW 20 million in cash at the request of K on November 201 or December 201 of the same year with the intent to obtain KRW 20 million through M in return for a solicitation from K at the end of November 201 or at the beginning of December of the same year. The lower court did not err by misapprehending the facts as alleged by the Defendant, thereby adversely affecting the conclusion of the judgment. Accordingly, the Defendant’s allegation in the grounds for appeal

5) Determination as to the acceptance of bribe on April 5, 201 of the judgment below

A) the relevant statements and evaluation thereof;

① On April 5, 201 of the same year, K, consistently from the prosecution to the original trial and the court of the trial, delivered KRW 20 million to the Defendant at the street near the “Hac shop”. At the time, 40,000 won each of the four bags 50,00 won combined each of the four bags 50,000 won in four bags at the time, and put them into a tape by inserting two bags together each of the documents bags. At that time, K put the documents bags folded into the inner side of the Defendant’s upper side.

NE stated that K has made an order to pay 4 million won to K, an employee of the headquarters of K, as it requires additional money to conduct the business activities for receiving orders for streetlights, and that K has transferred 4 million won to K’s account, and that it is true that K, an employee of the Seoul Office of K, on April 5, 2011, has made a statement that K had a fact of a business trip (Evidence Nos. 26, 34, 36 of the Record), and that N and 0 have been sent all of these statements of K. The deposit records of the account under the name of K also received KRW 4 million. In addition, N returned 800,000 from K on June 201, prior to the commencement of the investigation into the instant case, while she received additional money from the Defendant (No. 26,34,36 of the record).

③ The Defendant used W Handphones in the name of Q from March 201 to May 201 of the same year (Evidence No. 64 pages) and on April 3, 2011, the Defendant used the Defendant’s mobile phone (Z) in his/her name upon the Defendant’s request to call the phone to another person’s mobile phone (Evidence No. 6 pages).

④ On April 5, 2011, the Defendant and K made several calls on the day of the instant case using each cell phone with each of the following cell phones, and K used three times, including 15:12, 18:21, 22:19, and 22:19, and the Defendant also called the Defendant on three occasions. In light of the fact that the Defendant and K used the phone on four occasions, it seems that the Defendant and K continued to stand on four occasions as a problem.

⑤ On August 16, 2011, the Defendant stated at the prosecutor’s office that K had no fact on April 5, 2011 (the page 72 of the evidence record), and on August 17, 2011, the prosecutor’s office presented the call details of the prosecutor.

On April 5, 2011, the first statement was made that only the Defendant had a telephone conversation with the Defendant, and that there was no fact. A (Evidence No. 79 of the Evidence Record), the statement was reversed that the Defendant did not receive money (Evidence No. 80 pages), and re-reconvened the statement that the Defendant received KRW 200 to 3 million from the “H coffee shop” on the street (Evidence No. 80 pages of the Evidence No. 80), and on August 29, 2011, the prosecution accepted an envelope containing KRW 2 million in cash from K at the AA apartment 603 parking lot located in the Defendant’s residence (Evidence No. 131 of the Evidence No. 131 of the Record), and thus, cannot be believed to be inconsistent with its statement.

④ On August 29, 2011, the Defendant stated at the prosecution that he received KRW 2 million as stated in the above paragraph (5), and thereafter, at the lower court and the trial court, the Defendant tried not to visit K as of April 5, 201, but he continued to contact with K in the above AA apartment 603 parking lot on the way of returning home, after he was able to do so, he/she was able to put an envelope into the upper door of the AA apartment 603 parking lot, and he/she was flick, and he/she was flick, and he/she was flick upon becoming aware that he/she was an envelope with KRW 2 million on the following day.

However, it is difficult for K to believe that K, which issued two or more bags, contained an envelope in Ansan machine, was unaware of whether it was money or not, and when compared with the previous statement, there is doubt that K’s statement in the lower court and the trial did not intentionally change and specify the statement according to circumstances; K arrived at the 18:21 of April 15, 201 and was waiting at the Defendant’s residential place around 22:19 of the same day to keep the Defendant, and as seen earlier, K was waiting at the Defendant’s residential place around 22:19 of the same day to keep the Defendant. In light of the above, K rejected the above statement of K and kept the envelope more than 4 million won, and it is difficult to accept the Defendant’s assertion that it was a small amount of KRW 20 million.

7) The Defendant was under investigation by K on the charge of acceptance of bribe against the Sungnam Viewing public official, and K was under investigation by the prosecution, and the result of audit by the Board of Audit and Inspection revealed that K was under investigation on the place of use of the above funds, etc., and that K was under pressure by the prosecution, etc., and tried to conceal the Defendant’s crime by making a false statement or exaggeration of the fact of offering the bribe against the Defendant.

K A bribe for a public official of gender male viewing between December 2, 2010 and April 201, 201

The facts that were investigated by the prosecutor's office due to the suspicion of grant, and that were investigated by the Board of Audit and Inspection in connection with the raising of the non-funds of 1, are recognized by the Board of Audit and Inspection, and the fact that the Board of Audit and Inspection requested the prosecution to investigate the K on July 26, 201 is recognized as above. However, the defendant's above assertion is merely an abstract possibility and cannot be viewed as a reasonable doubt, and there is no circumstance that K made a false statement or exaggeration of the fact of acceptance of bribe related to the defendant, or there is no such doubt.

B) Comprehensively taking account of the evidence duly admitted by the lower court and the first instance court, including K’s statement, the fact that the Defendant received a bag containing KRW 20 million in cash from K on April 5, 201 can be sufficiently recognized. The lower court did not err by misapprehending the facts as alleged by the Defendant, thereby adversely affecting the conclusion of the judgment. Accordingly, the Defendant’s allegation in this part of the grounds for appeal cannot be accepted.

B. Determination on the assertion of unfair sentencing

The Defendant’s crime of this case is not very good in that it received a bribe on three occasions in response to the solicitation of the relevant company to assist in purchasing and installing street light poles at the following cities while serving as the Director General of G in the following cities: (a) thereby damaging fairness in the business affairs of local governments and causing the public confidence in the public office; and (b) the Defendant has been suspended for two times in the same kind of crime, as stated in the judgment of the court below. In addition, even though the Defendant was subject to suspension of indictment on two occasions

In light of this, it is necessary to punish the defendant with strict punishment.

However, the Defendant returned a bribe received within a short period from the date of the receipt of the bribe on two occasions among the crimes involving bribery over three occasions. It does not seem to have been given or received by affirmative demand. There is no reason to have an impact on the Defendant’s business due to the receipt of the bribe. A public official for about thirty (30) years has served faithfully as a public official, and the retirement age has not been maintained for a long time. The Defendant’s health

In addition to this point, comprehensively taking into account the various circumstances such as the defendant's age, character and conduct, intelligence and environment, motive, means and consequence of the crime, circumstances after the crime, and the status to be borne by the defendant when the sentence against the defendant is finalized, and economic disadvantage, it is recognized that the sentence of the court below is too unreasonable.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision is

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 129(1) of the Criminal Act; Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Joint Imposition of Imprisonment and Fines)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (only when concurrent crimes are concurrent crimes with the punishment stipulated in the crime of acceptance of bribe as of April 5, 201, which is the largest judgment of the court below)

1. Discretionary mitigation;

Articles 53 and 55(1)6 of the Criminal Act ( considered as favorable circumstances in the preceding);

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges

The judge of the presiding judge shall be Jin only

Judges fixed number of judges

Judges Yoon Young-soo